Image Courtesy: thewire.in
In a rather timely intervention, which saved the homes of thousands in Haldwani, the Supreme Court deemed that the decision of the Uttarakhand High Court to direct eviction of more than 4000 families from Haldwani was not practical. The residents heaved a major sigh of relief and jubilantly celebrated the court’s order which frowned upon the inhuman directions given the high court and stressed upon the need for rehabilitation for the residents if the land needed to be vacated.
The bench comprising Justice SK Kaul and Abhay Oka issued notice to the State of Uttarakhand and the Railways in a batch of Special Leave Petitions filed against the high Court’s judgment. The bench stayed the operation of the impugned judgment in the interim while observing that “there can’t be the uprooting of 50,00 people in 7 days”. The court while issuing notice has asked the State and Railways to come up with a practical solution by the next hearing scheduled on February 7.
The bench made oral remarks during the hearing while noting that the residents claim that they have been staying there for more than 50 years and rehabilitation has to be given. Justice Oka also pointed out that the high court passed its judgment without hearing the affected parties and said that one needs to find a solution since it is “a human issue”. He further pointed out that it may not be correct to direct paramilitary forces to be deployed to vacate the land.
On behalf of the many petitioners, Senior Advocates Prashant Bhushan, Colin Gonsalves, Siddharth Luthra and Salman Khurshid appeared. They submitted that some families have been in possession since before independence and many of them had government leases in their favour.
The court held in its order questioned whether the complete land is to vest in the Railways or the State Government is claiming a part of the land and also pointed out that there are issues of occupants claiming rights in the land as lessees/auction purchasers. The court also objected to the directions passed by the Uttarakhand High Court as “there cannot be uprooting of 50 thousand people overnight within seven days.”
“We do believe that a workable arrangement is necessary to segregate people who may have no rights in the land and those who have but to be removed but coupled with schemes of rehabilitation which may already exist while recognizing the need of the Railways,” the court said.
The court ordered a stay on the directions passed by the high court with complete restraint on any further occupation of land and/or construction whether by the existing occupants or by anyone else.
The Supreme Court order of January 5, 2023 may be read here:
History of the area
The township of Haldwani was created in 1834 by the East India Company and in 1896 the same was conveyed by deed to a businessman Dan Singh after which he started executing different sale deeds. In 1907 British officials entrusted the land to municipal bodies as nazul land while restricting its leasing or sale.
Uttarakhand High court judgement
On December 20, the bench of Justices RC Khulbe and Sharad Kumar Sharma ordered the eviction of residents of over 4,000 homes in Haldwani along the railway station while directing that the authorities may employ para military to use force upon the occupants if they refused to vacate the land in question.
The writ was filed for removing the unauthorised occupants from the railway land, adjoining Haldwani Railway Station, commonly called as Gaffur Basti.
The court observed that the local bodies had treated the land in question as nazul land (the type of Government land used for nonagricultural purposes such as building, road, market, playground or any other public purpose).
The court held that the document relied upon by local bodies, which is that the 1907 GO was not a GO in its true sense because it was an administrative communication, which was made in reference to the response to a letter of the Commissioner of Kumaon District. The court also observed that the same document created a restriction saying, “no sale of land, no perpetual lease will be allowed.”
The court thus concluded that it was not a Nazul land but was only directed to be managed as per Nazul rules. Further after 1939, the land ought to have been managed as per the United Provinces Tenancy Act, 1939
The court held thus,
33. Owing to the aforesaid reasons, the land lying in Haldwani Khas, even as a whole, cannot be treated as to be a nazul land for the reason being, that it is not even covered by the Office Memorandum of 17th May, 1907; and further that because its not even covered under the definition of “Nazul Land’ itself as provided under Rule 1 of the Nazul Rules due to exception clauses; and also in accordance to the notification of 1907, it only contemplated its management, but that itself was not actually conferring a right of treating the land as to be a nazul land.
The court held that the memorandum of 1907 does not confer any rights upon the occupants and since the memo itself restraints any execution of deed of sale or lease of the nazul property, all lease deeds would be in violation of the memo. Further the memo was held to be an official communication not having statutory force.
The court also observed that nazul land is treated as to be an escheat property, and being an escheat property, it would always vest with the State, over which, no proprietary right could at all under law be created because of the bar created by the Nazul Rules. Further nazul rules provide that if land adjoining a rail way station is to be sold or leased, prior sanction of Railway authorities is required which was not sought.
The contention of the intervenors that they were paying revenue with respect to the land, the court said that the same was for the purposes of discharging their tax liability to the local body and does not confer a title in context of the leases. Further, considering the lease deed, if the same were to be considered, the court said that the prescribed time limit had already expired and the right of enjoyment of the property has been extinguished since it was never renewed.
The court thus held that the the intervenors and occupants have no legal right over the land and thus directed the State authorities to “use the forces to any extent… to evict forthwith the unauthorised occupants after giving them a week’s time to vacate the premises” while stating that a week’s notice “would suffice of giving them advance notice of the probable action to be taken against them.”
The court directed railway authorities and district administration to use paramilitary forces if need be to vacate the land by giving a week’s notice to the occupants and if the occupants refuse to vacate then they can take “forceful possession” and then “demolish or remove the unauthorized structures”.
Further, the court also allowed the railway authority that if they are required to utilize force to demolish and take in possession the land, then the cost required to do so can be “recovered from them as an arrear of land revenue”.
The court also directed the police force to deploy personnel and for Arm3ed forces to surround the area and provide protection to police officials and railway staff engaged in demolition.
The court concluded with the following remark:
260. We hope and trust, that the directions given by us after a detailed analysis of the respective rights, would facilitate in ensuring the future railway development, and to curb the menace of the encroachment, on the land of the Railways, may be ultimately laid to rest and would be restrained to reoccur in future by the Railways Authorities.
While the high court, in its 176-page long judgement, extensively looked at the strictly technical legal aspects and the documents pertaining to the land etc, it turned a blind eye to not just the human aspect of the case and failed to bring under its purview the thousands of lives that stood to be affected by just one order of the court. It is a rather settled principle in property law (including tenanted properties in urban India) that “possession is nine-tenths of the law.” This really means that those living for decades in such properties have rights over it which are exercised. There is also the rather more complex issue of vast “government” lands and “common lands” over which settlements have been made. While the state and its multiple authorities were/are vying for the land and to evict these people, who claim to have been residents for over 50 years and some even before independence, the hopes of these people were pinned upon a court of law to apply settled and well-established principles that give a fair play to all sides. Several of these residents even have lease deeds in their favour to prove that they are legal claimants of the land, while that will be the subject of future decision of the Supreme Court, at least the court will direct proper rehabilitation of those displaced. The High court, not only overlooked the plight of these thousands of families, but instead directed use of force upon them by armed forces, if they refused to vacate and allowed forceful possession while also allowing recovering of the costs of using the force from the affected people as land revenue arrears! This decision reflected poorly upon the high court as a protector of people’s rights but thankfully, the Supreme Court in all wisdom came to the rescue at the appropriate time.
What is also rather strange is, that after the stay by the Supreme Court, even the ruling party under whose obvious directions evictions notices have been given, appears to be shying away from responsibility for the same.
The Uttarakhand High Court judgment may be read here:
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